10 Members of Congress rake FCC over the coals in official net neutrality comment

How and to what extent the FCC should regulate internet access has been a hot question for years, and the present administration holds opposite views than the previous one, resulting in a proposal to eliminate 2015’s Open Internet Order. But Congress (or at least a few of its members) isn’t going to take that lying down: 10 Representatives who helped craft the law governing the FCC itself have submitted an official comment on the proposal ruthlessly dismantling it.

You can check out the full comment here (PDF); at under 20 pages and written in a layman-friendly manner, it’s an easy Sunday read. It’s signed by 10 Members of Congress, including Frank Pallone, Jr (D-NJ) and Mike Doyle (D-PA), ranking members of the Committee on Energy and Commerce.

We, as members of Congress who also sit on the House Energy and Commerce Committee, submit these comments out of deep concern that the FCC’s proposal to undo its net neutrality rules fundamentally and profoundly runs counter to the law. As participants either in the passage of the Telecommunications Act of 1996 or in decisions on whether to update the Act, we write to provide our unique insight into the meaning and intent of the law.

As background, it’s important to know that the FCC’s proposal to eliminate the net neutrality rules from 2015 largely rests on reversing a decision made then that categorized broadband as a “telecommunications service” rather than an “information service.”

The rationale for this is fundamentally unsound, as I and many others have pointed out, and basically treats ISPs as if they are providing the services actually provided by the likes of Google and Facebook. The FCC is well within its rights as an independent agency to interpret the law, and it doesn’t have to listen to contrary comments from the likes you and me.

It does, however, have to listen to Congress — “congressional intent” is a huge factor in determining whether an interpretation of the law is reasonable. And in the comment they’ve just filed, Representatives Pallone, Doyle et al. make it very clear that their intent was and remains very different from how the FCC has chosen to represent it.

Here’s the critical part:

Since we voted for the Telecommunications Act in 1996, Americans rejected the curated internet services in favor of an open platform. Now, anyone with a subscription to an ISP can get access to any legal website or application of their choice. Americans’ ISPs no longer pick and choose what online services their customers can access.

While the technology has changed, the policies to which we agreed have remained firm the law still directs the FCC to look at the network infrastructure carrying data as distinct from the services that create the data. Using today’s technology that means the law directs the FCC to look at ISP services as distinct from those services that ride over the networks.

The Commission’s proposal performs a historical sleight of hand that impermissibly conflates this fundamental distinction. The FCC proposes to treat network infrastructure as information services because the infrastructure gives access to the services running over their networks. The FCC contends that ISPs are therefore “offering the capability” to use the services that create the content. However this suggestion obliterates the distinction that Congress set in to law-we meant for the FCC to consider services that carry data separately from those that create data. The FCC’s proposal would therefore read this fundamental choice that we made out of the law. Under the proposal’s suggestion, no service could be a telecommunications service going forward.

Pretty unambiguous, right?

In addition to clarifying Congressional intent in the Telecommunications Act, the letter addresses some shortcomings in the FCC’s proposal, mainly in its choice of data used to justify itself.

Americans overwhelming support stronger and clearer privacy rules. Yet the Commission—without comment—proposes to eliminate before-the-fact protections at the FCC in favor of an enforcement-only approach. The FCC should not degrade people’s privacy rights without thorough consideration.

Instead of considering these critical national priorities, the proposal single-mindedly concentrates on one issue to the exclusion of all others: the raw dollars spent on network deployment. This narrow focus is clearly contrary to the public interest—if we had intended network investment to be the sole measure by which the FCC determines policy, we would have specifically written that into the law.

Lastly, the letter suggests that the FCC may have inappropriately taken direction from the Executive:

It appears that the President directly ordered Chairman Pai to repeal net neutrality, potentially during a visit to the Oval Office. If true, this proposal clearly violates our intention to create an agency independent of the executive.

Ironically, one of Pai’s go-to criticisms of the 2015 rules is that they were unduly influenced by President Obama’s White House.